THE TREND in press and broadcast commentary about the Iraqi High Tribunal has been to describe the proceedings as a judicial train wreck, presided over by a weak judge who has lost control of the courtroom. But this characterization is based on several glaring misconceptions about the tribunal. As an expert in war crimes trials who trained the Saddam Hussein trial judges and heads up the tribunal’s Academic Consortium, I want to take this opportunity to clear the record before the myths become set in stone.

Americans viewing the gavel-to-gavel broadcasts of the Hussein trial must recognize that this is an Iraqi tribunal, though it employs the definitions of crimes and the due-process rights developed by the international criminal tribunals. In the Iraqi legal tradition, lawyers employ a far more boisterous courtroom demeanor than we are used to, often shouting at opposing counsel, the witnesses, and the judges. In addition, under the Iraqi Civil Law Inquisitorial system, the defendants as well as their lawyers are permitted to address the court and the witnesses. Therefore, presiding Judge Rizgar Mohammed Amin is not losing control of his courtroom when he permits this conduct; rather he is conducting the trial in accordance with the system under which he has worked as a judge for 30 years.

Far from a train wreck, in just five trial days, the prosecutor has completed an opening statement and the judges have taken testimony from nine witnesses, a very efficient pace even by American judicial standards. With 40 witnesses still to go, the prosecution has already proven the scale of the atrocities, the direct involvement of several of Hussein’s co-defendants, and the command hierarchy, all the elements necessary for a conviction in this case.

It was a terrible tragedy that two of the defense attorneys (who had refused the government’s offer of security) were killed just after the trial began. But Amin succeeded in crafting a compromise under which the defense counsel have been assigned personal body guards of their choosing, and their families have been moved out of the country for their protection, which should ensure their safety for the remainder of the trial.

As to who is winning the battle of wills between Hussein and Amin, the public needs to know that Hussein’s disruptive and disrespectful conduct is a common defense tactic, not just in international trials or Iraqi trials, but also in high-profile domestic trials even in the United States. Perhaps the most notable example was the infamous Chicago Seven Trial, in which Abbie Hoffman, Bobby Seale, and other leaders of the antiwar movement employed every gimmick imaginable to disrupt their trial for conspiring to cause riots during the 1968 Democratic National Convention in Chicago. It is no coincidence that Hussein’s American lawyer, Ramsey Clark, had been an adviser to the defense team in the Chicago Seven trial.

It is also noteworthy that Hussein’s most outrageous outbursts followed the emotionally compelling testimony of the first female witness to recount Hussein’s atrocities. Hussein knew that her tearful presentation could be extremely damaging to his standing among Iraqi Sunnis unless he could find a way to quickly distract media and public attention from it. So he told the judge to ”go to hell,” and announced that he was boycotting the reminder of the trial.

Consistent with international standards of due process, Amin could have Hussein hauled into the courtroom and placed in a glass booth, as Adolf Eichmann was at his trial in Israel, to prevent him from interrupting the trial with outbursts. But that would only add to the appearance of injustice, which Amin is trying to avoid. So when Hussein chooses to ”boycott” the trial, Amin has arranged for Hussein to follow the proceedings by video link from the detention center, an approach consistent with international standards that the Rwanda tribunal and special court for Sierra Leone have employed. Not surprisingly, Hussein’s boycott was shortlived, as he realized he could score more points from within the courtroom.

Amin may be portrayed in the Western media as an ineffectual judge, but in Iraq he is getting high marks for the conduct of the trial, especially for his judicial temperament.

Michael Scharf is professor of law and director of the International Law Center at Case Western Reserve University School of Law.

Secretary of State Donald Rumsfeld’s announcement of guidelines for military trials in our war against terrorism took many observers by surprise. “Watered down” is how one television network labeled its segment on military commissions (known by some as tribunals). Apparently, critics had been successful in establishing the idea that the commissions were intended to railroad anyone caught up in the terror campaign against the United States. In fact, the guidelines establish a fair process that properly protects defendants’ rights and U.S. security interests.

Nonetheless, critics continue to insist that prisoners be tried in U.S. domestic courts.

It is our belief, however, that debate should re-focus on the bedrock question of whether there currently exists any adequate mechanism for prosecuting prisoners who end up in U.S. custody during this terror war. From our perspective, no such mechanism exists. Military commissions can and must fill this role.

It is necessary, first off, to recognize that Al Qaeda terrorists are not ordinary criminals. President Bush has rightly called the September 11 attacks “acts of war,” and in that context prosecution is properly regarded as part of a national security effort, not an aspect of ordinary criminal law enforcement. We must also take account of the size of this challenge. The Al Qaeda and Taliban forces number up to 50,000 men, which could potentially mean hundreds of prisoners ultimately being brought to justice. The president has made it clear that he has no intention of trying every prisoner. But it seems likely that this conflict will be of long duration, and there could be a need for many trials before it ends.

The domestic judicial system was never intended nor designed to perform judicial roles related to a terror war. Instead, it was designed primarily to protect civil liberties of citizens while prosecuting those responsible for crimes. It is altogether incapable of serving the role of capturing, deterring, and punishing what amounts to a terrorist army, as history has made painfully clear.

The domestic judicial system proved itself completely incapable of punishing or deterring those responsible for terror crimes including the 1993 bombing of the World Trade Center, the 1998 bombings of U.S. embassies in Africa, and the 2000 attack on the U.S.S. Cole. At best, that system is able to prosecute only a handful of low-level culprits or ideological supporters. The system is otherwise impotent and added to our vulnerability in the September attacks.

Deterrence is not the only security issue. Insisting on the application of American constitutional due process standards to terror perpetrators would inappropriately limit the U.S. in the exercise of its national security powers. In some cases, valuable evidence might have to be excluded for various reasons, including the protection of highly sensitive sources. That would sometimes make convictions impossible in a domestic court, although warranted by the facts.

We have already seen the horrifying result of insisting on those traditional standards. In 1996, Sudan offered to detain and transfer Osama bin Laden to the United States. Yet, according to The Washington Post, then-National Security Advisor Sandy Berger declined the offer on grounds that it would not be possible to try and convict him in an American criminal court. Indeed, when Berger turned down Sudan’s offer to turn over bin Laden, he tried to persuade Saudi Arabia to take him and, after a streamlined trial, have him hanged. His strategy failed, and bin Laden went to Afghanistan and built his terrorist empire.

Critics of military commissions complain that defendants’ rights will be reduced, yet that is patently untrue. As Secretary Rumsfeld and the Pentagon have now made clear, commission standards are fully consistent with international standards. They will provide for appellate review, the presumption of innocence, the requirement of proof beyond a reasonable doubt to establish guilt, the admission of some hearsay evidence, the limited use of cameras in the courtroom, the requirement of a two-thirds majority for convictions – and a unanimous decision for a sentence of death. Defendants will be supplied with counsel, and may indeed hire outside counsel.

Some critics suggest we turn over suspects to an international criminal court. No such court is yet in existence, but preliminary signs of how such a court might operate are not promising. The Spanish prosecutor Baltasar Garzon, for instance, is rumored as a potential prosecutor for this court. Garzon can hardly be called an impartial jurist: He responded to the U.S. announcement that it would militarily pursue Al-Qaeda in Afghanistan by condemning the action as illegal and unjust, adding that “it should not be forgotten that there will come a time when justice is demanded of those responsible for these mistakes and the loss of a historic opportunity to make the world more just.”

The call for military commissions must be considered against this backdrop. From our perspective, the U.S. government is entirely correct in deciding not to continue the criminal-law response to terror, which contributed to our vulnerability on September 11. It is also well advised not to submit to bodies such as the ICC, which would further limit the U.S., and our allies, from effectively defending the U.S. against its enemies and protecting freedom and civil order from terrorist onslaught.

Abraham D. Sofaer is a senior fellow at the Hoover Institution and professor of law at Stanford University. Paul R. Williams is assistant professor of law and international relations at American University. This essay is adopted from the current issue of Policy Review.

Peace Before Prosecution By Morton Abramowitz and Paul R. Williams, The Washington Post, August 25, 2003

Just as President Charles Taylor was arriving in Ghana on June 4 to participate in negotiations sponsored by West African nations to end the Liberian war, the U.N-supported special tribunal for Sierra Leone publicly unveiled his sealed indictment as a war criminal. His indictment points up how the diplomatic process for resolving armed conflicts can be affected by independent judicial bodies — a consideration that will likely grow with creation of the International Criminal Court and the spread of ad hoc tribunals such as those created for Yugoslavia, Rwanda and East Timor.

Many involved in the peace process denounced Taylor’s indictment as undermining diplomatic efforts to bring peace to Liberia. His listed crimes related to support of rebels in Sierra Leone who had committed crimes against humanity and bore no relationship to the continuing conflict in Liberia. In their view, while the Sierra Leone tribunal was created after the British made peace in Sierra Leone possible, it was now putting at risk efforts to stop the Liberian civil war. Because Ghana’s government failed to arrest Taylor and no other government was willing to do it, many believe the indictment delayed Taylor’s departure from Liberia.

Others welcomed the indictment, arguing that it put the diplomats on notice that they were negotiating with an indicted war criminal, hindered them from appeasing Taylor in negotiations and eroded the morale of his troops and their ability to defend against rebel forces.

We do not know whether publication of the indictment prolonged the war or accelerated Taylor’s departure; the final chapter of the Liberian civil war is still being written. But this dilemma is likely to repeat itself. Potential indictments in Congo, Colombia, Sudan, Sri Lanka and Zimbabwe may influence diplomatic efforts to promote a quicker peace settlement in those places or change a terrible regime. Indictments might well further a settlement rather than retard one. Similarly a “peace process” should not be confused with actually producing peace; we have witnessed that confusion repeatedly over the past decade. In any event the role of justice and accountability in resolving armed conflict needs greater attention.

The discussion to date is crudely divided into two camps, with both well aware of the complexities involved. “Justice first” advocates emphasize the preeminence of justice and focus on creating tribunals and establishing jurisprudence. The international “realists” stress not allowing justice to interfere with the ability to make peace and end massive violence.

The reality is that justice plays an important role in the “peace process” — propelling it or delaying it. But there is no specific mechanism for reconciling as well as possible the choice between impunity and accountability. There will be more war crime cases in which the benefits of deterrence and reconciliation must be weighed against the human costs of more violence.

History is an uneven guide in such dilemmas. An indictment may further an important cause, as in Kosovo, where the Yugoslav Tribunal indicted Slobodan Milosevic for crimes against humanity just as some NATO members were losing their will to continue the air campaign — a campaign that went on to end the conflict and Milosevic’s ethnic cleansing. In Bosnia, many believe that not indicting Milosevic before negotiations made peace possible and prevented more violence. Alternatively, some argue that had the Yugoslav Tribunal indicted Milosevic for war crimes prior to negotiations rather than four years later, it might have forced NATO into defeating Bosnian Serb forces rather than accepting the de facto partition of Bosnia and allowing Milosevic to ethnically cleanse Kosovo.

There is also a recent example of a peace agreement with truly vile parties going awry. The Lome agreement on Sierra Leone incorporated Foday Sankoh — later to become an indicted war criminal — into the government, and thereby produced several more years of a horrible war. The absence of justice in that case furthered war.

Just as it is improper to politicize justice it is important to avoid the possibility of institutions of justice overwhelming the complexities of peacemaking. Today there is no effective acceptable mechanism to guide tribunals whose actions might have a significant and unexpected impact on peace negotiations. The international community has relied on the judgment of prosecutors and tribunal judges, but these are people who should not be responsible for navigating the ins and outs of diplomatic negotiations. To require them to do so politicizes the tribunal.

It is important to develop a mechanism for doing this job.

Member states of the International Criminal Court have rejected a role for the U.N. Security Council. One possible solution is to make use of the unique role of the secretary general and have the Security Council authorize him to advise tribunals, especially U.N. tribunals, on the appropriate timing to release indictments. The secretary general could advise that an indictment be sealed and announcement delayed until the conflict ends. Alternatively he could determine that peace would be served by making an indictment public. At no time should the secretary general be permitted to argue for impunity. This is one step that might save lives and better preserve the international momentum toward punishing such crimes.

Saddam Hussein: Don’t Just Fight Him, Indict Him As with Yugoslavia and Nazi Germany, make the case against Iraq’s dictator in court.

By Michael P. Scharf, Los Angeles Times, October 6, 2002

Assuming that regime change in Iraq is inevitable, the question of what to do with Saddam Hussein and the surviving members of his governing clique becomes more pressing. Since Hussein has so often been compared to Adolf Hitler, it makes good sense to turn to the historic analogy of World War II for some guidance.

As the Allies pushed into Nazi Germany in spring 1945, there was considerable debate about what to do with the Nazi leaders after Germany’s defeat. British Prime Minister Winston Churchill suggested a firing squad. Soviet Premier Josef Stalin agreed, adding that his advisors had already come up with a list of 50,000 German candidates for execution. The United States instead proposed an international trial, which ultimately led to the establishment of the Nuremberg Tribunal.

Although the Nuremberg proceedings served many purposes, a main one was to justify Allied conduct during and after the war by putting an international spotlight on German atrocities. Once the world learned of Nazi war crimes and genocide, it would accept the controversial Allied firebombing of Dresden, as well as Allied plans for occupation and de-Nazification of Germany.

Fifty-four years later, the international indictment of former Yugoslav President Slobodan Milosevic proved similarly useful to the United States and its allies. The International Criminal Tribunal for the Former Yugoslavia indicted him for crimes against humanity in March 1999, roughly two months into NATO’s bombing campaign against Serbia. The timing of the indictment was crucial. Popular support for NATO’s intervention in the Balkans was waning in several NATO countries in the face of intense press criticism of its use of cluster bombs and depleted-uranium munitions, attacks on civilian trains and media centers, and the accidental bombings of the Chinese Embassy in Belgrade and territory in neighboring Bulgaria. The Milosevic indictment gave the North Atlantic Treaty Organization the moral credibility it needed to sustain international support for its military intervention. It also induced Milosevic to accede to NATO demands.

A judicial confirmation of the case against Hussein would similarly build international support for action against Iraq, both before and after military action.

U.S. investigators are said to have collected bountiful evidence of the atrocities committed by the Iraqi regime over the last 20 years. These include the taking of foreign nationals as hostages; using foreign nationals as human shields; raping and killing foreign civilians; torturing prisoners of war; pillaging civilian hospitals; launching Scud missiles at civilian targets in neighboring countries; releasing oil into the Persian Gulf; sabotaging oil fields in Kuwait; deploying chemical weapons; and committing genocide-like crimes against the Kurd and Shiite populations in Iraq. But this evidence has not been entered into the public record through a fair trial that can, in the words of Nuremberg lead prosecutor Robert H. Jackson, “establish incredible events by credible evidence.”

In the aftermath of the attacks on the World Trade Center and Pentagon, the chief prosecutor of the Yugoslavia tribunal, Carla Del Ponte, proposed expanding the jurisdiction of the U.N. Security Council-created tribunal to include prosecution of Taliban and Al Qaeda leaders taken into custody. Although the Bush administration prefers military tribunals instead, Del Ponte’s proposal could be easily implemented for Hussein and company.

All that would be necessary to accomplish this is for the U.N. Security Council to pass a resolution expanding the Yugoslavia tribunal’s jurisdiction to include violations of international humanitarian law committed by Iraq during its war with Iran in the 1980s, Baghdad’s invasion and occupation of Kuwait in 1990, its role in the Persian Gulf War in 1991 and its subsequent, brutal repression of the Kurd and Shiite rebellions in Iraq.

The trials could take place down the road from The Hague at the super-secure courtroom and detention center at Camp Zeist, where the Pan Am Flight 103 bombers were tried two years ago. While the international tribunal already has enough judges to staff this new undertaking, the United States and allies could supply prosecutors to prepare indictments quickly.

The one obstacle to such a tribunal is the approval of the five permanent members of the U.N. Security Council. The British, strong supporters of the permanent international criminal court established last summer, might view expansion of the Yugoslavia tribunal as a U.S. effort to undermine the permanent court. But this objection would be invalid, because the permanent international criminal court is prohibited by statute from exercising jurisdiction over crimes committed before July 1, 2002.

The Russians and French, who have a huge financial stake in Iraqi oil, may initially oppose an expanded Yugoslav tribunal because it might imperil the current U.N. effort to induce Hussein to accept new inspections. But in light of Hussein’s history of frustrating U.N. inspection teams, who can seriously believe that he will fully cooperate this time? When he does block the inspectors, the U.S. must be ready with the trial proposal.

It is one thing for President Bush and Prime Minister Tony Blair to assert that Hussein is evil and to expect the rest of the world to believe unsupported claims about the threat he poses. It would be quite another if, on the eve of military action against Iraq, a panel of distinguished international jurists were to conclude that the evidence of the Iraqi leader’s war crimes and crimes against humanity is sufficient to confirm an indictment and issue an international arrest warrant. Thereafter, as was the case with Milosevic, every reference to Hussein would be followed by the moniker “indicted war criminal.”

The destruction of the Taliban and Al Qaeda grip on power in Afghanistan has unleashed a torrid debate as to the proper means for bringing members of these organizations to justice for their terrorist crimes.

The White House decision to use military tribunals to try these individuals has led to a hail of criticism. While at first glance there are important constitutional and civil libertarian concerns with military tribunals, a closer analysis shows that they are the best short-term option for dealing with hundreds of terrorist cases. After these are set up, the United Nations could complement them by expanding the jurisdiction of the war crimes tribunal at The Hague.

In the past, the United States has pursued a failed policy of domestic prosecution of terrorists. In the cases of the 1996 Khobar Towers attack in Saudi Arabia, the 1998 bombings of U.S. embassies in Africa, the Cole attack in 2000 and the 1993 bombing of World Trade Center towers, the U.S. has been able to prosecute only a handful of low-level culprits and ideological supporters. With potentially thousands of Al Qaeda terrorists about to fall into the hands of the U.S. military or Northern Alliance, this process will neither serve as adequate justice nor as an effective deterrent to further acts of terror. More strikingly, domestic prosecution prevents the early apprehension of terrorists, as was the case when the Clinton administration declined Sudan’s offer in 1996 to turn over Osama bin Laden because there was not sufficient probable cause to try him in U.S. courts. Domestic prosecutions also are hindered by difficulties in obtaining custody through extradition and the inability to use sensitive intelligence information in court, among other things.

Similarly, there exists no effective international forums for the prosecution of terrorists. While the International Criminal Court has been mentioned as a possible venue, the treaty establishing it is not yet in force, its jurisdiction does not include terrorist crimes and it does not have retroactive jurisdiction. It would take many years to select a prosecutor and judges, let alone prepare an indictment against key terrorist figures. In the case of the Yugoslavia tribunal, it took seven years to indict Slobodan Milosevic.

Likewise, an international terrorism court would take years to establish and potentially have the same deficiencies. A military tribunal, therefore, provides the most practical, flexible and effective means for bringing suspected terrorists and war criminals to justice. While not an ideal solution, a hearing before a military tribunal applying international standards of due process is preferable to the likely alternative of summary execution by the Northern Alliance or southern Pushtun tribes or summary trial by any number of Islamic courts in the region.

Fears that a military tribunal would further inflame Arab animosity against the U.S. are not well founded. While Islamic fundamentalists would no doubt see any trial as a rigged process, moderate Arabs will weigh the fairness of a military tribunal against their own perceptions of justice. To ensure the proper functioning of military tribunals and to guarantee an accurate perception of their operation, the tribunals should conduct as much of the trials in public as possible, should strictly adhere to international standards of due process and international definitions of criminal behavior and should incorporate, where relevant, civilian or military judges from countries where the defendants are apprehended.

To begin to solve the long-term problem of trying high-level suspects, however, the U.S. should support an effort to expand the jurisdiction of the Yugoslav war crimes tribunal to cover acts associated with the Sept. 11 attacks and the crisis in Afghanistan.

That tribunal operates with a competent prosecutor and has a full complement of trial and appellate judges, including Islamic judges, so it is well suited to try the top level suspects, leaving the military tribunals to try lower-level actors. Most important, over time, the Yugoslav tribunal could evolve into a universal terrorism court. Such a court would fill a crucial gap in the new war on terrorism.

This text may not be in its final form and may be updated or revised in the future.

DEBBIE ELLIOTT, host: With critics questioning the validity of the proceedings that led to Saddam Hussein’s execution, we take a few minutes now to revisit the trial. It was plagued by problems from the beginning, and the fact that it was televised only heightened public scrutiny. Defendants launched into tirades, three defense attorneys were murdered, and a judge was replaced.

Michael Scharf, a law professor at Case Western Reserve, helped train the tribunal’s judges.

Professor MICHAEL SCHARF (Case Western Reserve): Really, everything that could go wrong in this trial did. It began with the human rights community allied against the tribunal because it had decided to have the death penalty as an available penalty. Also, they decided not to have an international trial but rather to do it in Iraq. And finally, there was a lot of countries around the world and human rights organizations that thought it was inappropriate to have a trial after a war that was seen largely as unlawful.

So the tribunal was snake bitten from the beginning. But the real story is more nuanced. Throughout all these problems, the prosecution continued to bring witnesses and evidence into court and most of the trial was based on documents. And at the end of the proceedings, the tribunal issued a 298-page singled-space judgment. It’s the longest ever written judgment in a war crime’s trial.

And in that judgment, the judges deal with every single issue raised with the defense. And most of these are dealt with the first time, unlike U.S. courts, where pre-trial motions are decided at pre-trial. They waited until the final judgment to deal with all sorts of weighty issues like the question of whether the judge was too biased to preside over the trial.

And what you get when you read through this very long opinion is a sense that this trial actually did a credible job. I couldn’t find as a law professor and an international law expert any major errors of law. The legal findings of fact were meticulously done. So if nothing else, they have written a definitive account of a period of history that needed to be written with credible evidence.

ELLIOTT: Executing Saddam now means that he will not be held accountable for much greater crimes like the genocide against tens of thousands of Kurds in the Anfal campaign. Are the Iraqi people now deprived of historical accounting?

Professor SCHARF: This is my biggest disappointment. That would have required a legislative change because the Iraqi High Tribunal statute has a provision that says that the death penalty, if given, has to be implemented within 30 days after the final appeal. It wouldn’t have been hard to get that legislative change except for the fact that the winds of public opinion had also changed in Iraq.

And I think there was a general feeling that enough was enough. When you had to balance those two goals, the goal of having the accused face the victims and these other major atrocities versus the goal of just having Saddam Hussein removed from the scene, I think the Iraqi people ended up saying their best chance of peace would be an Iraq without a Saddam Hussein alive in it.

ELLIOTT: Michael Scharf is co-author of a book called “Saddam on Trial: Understanding and Debating the Iraqi High Tribunal.” He joined us from us from WCLV in Cleveland, Ohio.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

COOPER: We’re joined Curtis Doebbler, one of Saddam Hussein’s attorneys is calling in from Venice, Italy, with some information about the execution or about what happens now.

Mr. Doebbler, what information do you have? Do you know what happens to Saddam’s body now?

CURTIS DOEBBLER, SADDAM HUSSEIN ATTORNEY: Well, you all told me and what we’ve stated all along is that we think this whole process is illegal and unjust. And almost every international observer who has reviewed it has said the same thing.

The Iraqi government has stated publicly that they will not turn over the body and that they will bury it in an unmarked grave. That is, of course, in Islamic areas, an affront to the family of the deceased and to the memory of the deceased. But perhaps that is exactly what they’re trying to do.

They have shown throughout this the vengeance and a hatred that is part of the problem right now in Iraq.

COOPER: What do you think was unfair about the trial?

DOEBBLER: Well, we’ve listed that in a more than 150-page document that was submitted to rights watchers, 100-page reports, the U.N. Working Group on Arbitrary Detention has written dozens of pages on it. There was no time and facilities to prepare a defense. The prosecutor, for example, bragged about having $200 million and the authority of the American military behind him. We were volunteers. We had no access to evidence. Even the main evidence in the trial. We didn’t even get to visit the site where the alleged crimes had taken place. And we were not even able to see the papers from the trial.

One of the people executed today was Judge Bandar. And judge Bandar asked continuously throughout the trial for the papers in the trial he presided over that he said would prove it was a fair trial.

The Americans taunted us by saying they had these papers, but never introduced them into evidence. The charges were given one hour before we were then told to put on a defense. And you saw, probably, in court when I tried to argue that this trial was unfair and that they need to stop the trial and ensure due process is being done. The judge told me that was irrelevant, that human rights and the rights of an individual to a fair trial are irrelevant in this courtroom.

This is the same judge that before the trial started said that the defendant, the primary defendant should be executed without a trial.

Now, under those conditions, you cannot have a fair trial.

COOPER: I want to bring in Michael Scharf. If you could, Mr. Doebbler, just stay on the line with us. I want to bring in Michael Scharf, the law professor with Case Western Reserve University. He helped train some of the Iraqi judges in the trial.

MICHAEL SCHARF, TRAINED IRAQI JUDGES: Well, Curtis and I have debated this very subject on C-SPAN on several occasions. I will say this again.

Anybody who reads the 298-page judgment of the trial chamber, which is now translated into English and available on the Case Western Reserve Web site, will see a very different picture than Saddam’s attorneys, including Curtis Doebbler paint.

Almost everything that Curtis just told you has a different gloss. And it’s very instructive. I think history will look back at this trial and judge it not just through the eyes of the defense counsel, but through the eyes of the tribunal judges themselves who have put this down on paper. And I do think when you read this decision that legally it does uphold — I mean, there were lots of things that went wrong in this trial, but overall, there was not a miscarriage of justice.

COOPER: Mr. Doebbler, I want you to be able to respond to that. I also want to ask you what Saddam Hussein was like in your time with him?

DOEBBLER: Well, first let me say, you know, I think Michael knows that I see him very much as a war profiteer in this case. He has been very much behind this. He has tried to promote his ability to show that this is a fair trial.

And every independent expert who has looked at this trial, not the defense lawyers, but every independent expert has said that this trial was unfair.

The president throughout the proceedings, I think, tried to remain a person of integrity and to try to show that he had some leadership qualities about him. He still, as many people in his position believed, he believed that he personified the persona of the people that he had led. And he believed that he personified the resistance against what he believed to be, and many people in the international community believe to be the illegal invasion and occupation of their country.

(CROSSTALK)

COOPER: Do you believe he was a man of integrity?

DOEBBLER: Sorry?

COOPER: I’m sorry. I just want to make sure. Did you believe — do you believe he was a man of integrity?

DOEBBLER: It’s not important what I believe. You asked me how he tried to portray himself. And that’s what I’m telling you. And just like it’s not important whether I believe the trial was fair or unfair, what is important are the facts.

And every single expert who has looked at this trial had said that it was patently unfair. In fact, Michael Scharf said that it was patently unfair until he was converted. And he explained to me one time, after training these judges for two weeks — in fact, the chief judge was one he never trained — that he learned international law.

I spent 20 years studying the law, and I’m still a student of the law.

It was impossible to teach people the law in that time. And it was impossible to have a fair trial when all the circumstances around it don’t even provide for the security where lawyers can stay alive.

COOPER: I just want to give Professor Scharf just a chance to respond, and then we’ll move on.

Professor Scharf?

SCHARF: Yes, I mean, ultimately, I’m not a war profiteer. I’m someone who trains international judges. I just came back, in fact, from Cambodia where I was working with the judges who will be prosecuting the comarouge (ph) genociders.

And what we did is to spend a lot of time talking about what went wrong during the Saddam trial so that they could learn the lessons from the trial and make sure that their tribunal goes a little bit more smoothly. I agree with the critics that much did go wrong.

But again, all of those documents that Curtis cited, those all came out before the written judgment of the tribunal. And I think it’s premature to judge this trial without reading its written record, a record I think that will last and prove itself over time.

COOPER: Curtis Doebbler, attorney for Saddam Hussein — one of the attorneys for Saddam Hussein, we appreciate you talking with us tonight on this very busy night.

We’re going to take a short break. When we come back, we’ll have a lot more coverage from around the world, around the United States. Stay tuned.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

So it appears now Saddam Hussein will not be alive to see the new year. That’s the reports we’re hearing. As a matter of fact, one of his lawyers told us Hussein’s execution might happen as early as tomorrow. That jives with what we just heard from Aneesh Raman. Perhaps the execution will occur before the Islamic holiday of Eid.

For more, we turn to our Vanderbilt law professor, Mike Newton, who is an expert in all this. He’s also an adviser to the Iraqi tribunal handling Saddam’s case.

Mike, good to have you back with us.

MIKE NEWTON, ADVISER TO IRAQI HIGH TRIBUNAL: Good morning, Miles.

O’BRIEN: First of all, let’s talk about this cultural consideration which Aneesh just brought up. It’s not just a legal matter. There are sensitivities to the Islamic faith here.

Explain that.

NEWTON: Well, there are great sensitivities, and there’s also a great number of political considerations on all sides, because the politics here are that they want to do what creates the most stability and the most peace long term. That’s one of the core purposes of this process, is to bring healing and stability.

So they’re trying to navigate this in a way that accomplishes that purpose the best.

O’BRIEN: Well, I suppose you can make an argument, though, that not executing him right now would be in the interest of stability, to the extent that there is any stability in Iraq. Just a little while ago, we spoke with a former Iraqi spokesman who’s in London now, and he had some words to say about the timing of all this.

Let’s listen.

(BEGIN VIDEO CLIP)

LAITH KAABA, FMR. IRAQI GOVERNMENT SPOKESMAN: This is taking place not at a fortunate time. It’s taking place at a time when the country is going through a difficult time and it needs a let of healing and a lot of attention. The Saddam trial and execution, if it was done under better circumstances, it would have accelerated the healing process.

(END VIDEO CLIP)

O’BRIEN: So Mr. Kaaba is saying essentially this is not the right time to do it.

Would you concur with that?

NEWTON: Well, this is one of the core reasons why originally philosophically the Iraqis demanded control of this process, because they felt like they were in the best position to determine what was in the best long-term future of Iraq. Many Iraqi judges and many Iraqi prosecutors have risked their lives and have said over and over and over again that they want to restore the rule of law to Iraq.

So at this point what’s in the best long-term future of Iraq, some things could have been done better, certainly. But it’s really an Iraqi decision.

O’BRIEN: When you say things could have been done better, what about the trial itself? Just a little while ago we spoke to one of Saddam’s defense attorneys. Let’s listen to what he had to say briefly.

(BEGIN VIDEO CLIP)

AL-NUAIMI: This court was biased and they are not — they did not do anything, you know, within the legal framework of international law.

(END VIDEO CLIP)

O’BRIEN: Nuaimi said essentially it was political and it was really orchestrated entirely by the Bush White House.

You’ve looked at this trial obviously very closely.

NEWTON: Yes. Yes.

O’BRIEN: Do you think — would it stand an appeal here in the U.S. system, for example?

NEWTON: Well, he raises two issues. One is that the defense repeatedly tried to inject the political element into the courtroom. And over and over and over again the judges tried to keep the politics out and keep it focused on the law and the evidence and the facts. That’s point one.

So, in fact, many times the Iraqis would say, I’m an Iraqi judge applying Iraqi law with international law built in. So this is a legal process not a political process.

O’BRIEN: A final thought here. Why are there — why is it so murky? Is it because of security concerns, or is it just that the fledgling government there is tentative about what they’re going to be doing? NEWTON: I think a little bit of both. And the reality is that this is an extremely important moment for the future of Iraq. And I believe they want to do it well, they want to do it right, and they want to do it truly in a way that does facilitate healing and societal restoration, because this is what this is all about.

O’BRIEN: Mike Newton is a Vanderbilt University law professor and an adviser with the Iraqi tribunal.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

O’BRIEN: Saddam Hussein may hang from the gallows in Iraq sometime in the next 30 days. The Iraqi court system rejecting Saddam’s appeal, so he faces execution for the massacre of 148 people in the town of Dujail, reprisal for an assassination attempt.

Vanderbilt law professor Mike Newton is an adviser to the judges on the Iraqi high tribunal. He joins us here in person today.

Good to have you with us, Mike, in person especially.

MIKE NEWTON, VANDERBILT UNIVERSITY LAW SCHOOL: Thanks, Miles.

O’BRIEN: Is it likely we’re going to see this in the next 30 days?

NEWTON: Almost certain because the whole process of the tribunal was to demonstrate the power of law over politics, and the legal process has worked its way through. The appeals court, what they call the cassation (ph) panel, has spoken and so the legal process is complete.

O’BRIEN: There is a provision, though, for the prime minister, Nuri al-Malaki, to issue a stay of execution. Do you think that will happen?

NEWTON: Not likely, primarily because of the awareness of the overall situation. They want to move on with other trials. There are lots of other trials in the pipeline.

O’BRIEN: You mentioned the other trials. And that would be a good reason, I suppose, to keep Saddam Hussein alive as a possible witness on those subsequent trials of accomplices on these current ones. Why wouldn’t the legal system there look upon that as a good idea?

NEWTON: Well, the fact is his testimony or other related testimony can be preserved in any number of other ways, witness statements and those sort of things in the referral packet that become trial evidence. But the Iraqis are very ambitious in terms of other cases that will move forward, and many, many other victims will in fact have their day in court, whether Saddam is sitting there or not.

O’BRIEN: What about the other victims in right now he’s on trial for the gassing of the Kurds, those allegations? Victims and family members in that case might feel as if they’re cheated out of justice.

NEWTON: Well, the prosecution case is almost complete in the Anfall trial. The Anfall trial It had over 50 incidences of chemical weapons against Kurdish civilians, as well as hundreds of villages destroyed, bulldozed under. One of the most powerful things of this whole process has been is normal people coming into court to sit and look at those accused, look them in the eye and tell about happened, and that’s been very…

O’BRIEN: So in a way, though, if he’s executed in the next 30 days, for subsequent trials, subsequent victims, they will not have that opportunity. Is that a miscarriage in some way of justice?

NEWTON: Well, they won’t have it with Saddam, but they’ll have it with other defendants, other military commanders, other high- ranking Baathist officials, who in fact ordered and facilitated those atrocities through the common plan of the state. This was institutionalized terror where the state used all the power at its disposal to persecute its own civilians. So they’re lots and lots of other people.

O’BRIEN: I know you’ve worked long and hard with these judges and you think highly of them, but it it’s been difficult for them to run these trials, obviously.

NEWTON: Yes.

O’BRIEN: How much credibility do they have right now, do you think?

NEWTON: Well, when you look at what actually happened in the courtroom and you look at the entirety of the record, the judges strove valiantly to keep the politics out of the courtroom, keep the trials moving ahead, based on law, based on evidence, based on testimony in the courtroom, and the trial judgment itself was 283- pages long, very long, extensive discussion of all of the range of legal issues, full consideration of the facts and the evidence from both the defense and the prosecution. It’s a very credible trial record.

O’BRIEN: Having said all that, we talked about this before, do you feel at this point it would have been better to move it outside of Iraq, say to The Hague?

NEWTON: I asked that question of a young Iraqi translator who saw every moment of trial, and she was adamant, and only anecdotal, but I think exemplary of thousands and thousands of others Iraqis, the very powerful demonstration normal people looking those privileged leaders who acted as though they were the law, they were above the law, you couldn’t have done that outside of Iraq.

After all that’s been said and written about Saddam Hussein and his underlings, is a fair trial even within the realm of possibility?

If I had been asked that question a year ago, when I first learned of the Iraqi Special Tribunal, I would have answered an emphatic “no.” In fact, I wrote back then that the tribunal would probably be viewed as a “puppet court of the occupying power.” Its statute had been drafted during the occupation by the U.S. government, it was being funded by the United States, and its judges were selected by the U.S.-appointed provisional government and assisted by U.S. advisers. All this on top of the fact that, with or without weapons of mass destruction, Hussein has already been tried and found guilty of atrocities in the international court of public opinion.

But that was before I spent a week in London in October, at the invitation of the Justice Department’s Regime Crimes Liaison Office in Baghdad, helping to train the Iraqi Special Tribunal judges soon to be on the world stage. My experience there convinced me that I had been wrong about the tribunal.

In the next few weeks and months, we’ll find out for certain. Last week, interim Iraqi Prime Minister Ayad Allawi said that pretrial hearings in the war crimes cases against Hussein’s senior aides would commence within days. Yesterday, the tribunal held the first such hearing. Two former officials appeared, including Ali Hassan Majeed, the former general and close Hussein confidant known by the nickname “Chemical Ali.”

Last Thursday, Hussein and one of his defense lawyers had their first meeting, which lasted four hours. I don’t think Hussein’s lawyer was wasting his time. It’s not that I believe that Hussein will ever walk free, strolling out of the courtroom cleared of all charges. But he could be found not guilty on some of the alleged crimes. As for the rest, just because acquittal is highly unlikely doesn’t mean a trial is unfair. What makes a trial fair are fair procedures, judges who can make fair decisions and what lawyers call “equality of arms,” meaning that the caliber of the defense team measures up to the ability of the prosecutors.

What I learned in London from the tribunal judges was that all three of those conditions could be met in Iraq. Now the challenge will be to conduct the proceedings in such a manner that the world believes those conditions are present.

Why did I change my mind? First, I learned that the Iraqis had played a greater role in drafting the Iraqi Special Tribunal (IST) statute than had been generally reported. They had insisted, over initial U.S. objections, on the inclusion of a provision (Article 14) that enables the IST to prosecute Hussein for the crime of aggression, in addition to war crimes, crimes against humanity and genocide. The crime of aggression has not been prosecuted since 1945 in Nuremberg. The United States, which itself has been accused of waging unjustifiably aggressive wars, successfully kept it out of the statutes of the Yugoslav tribunal, the Rwanda tribunal, the Special Court for Sierra Leone and the permanent International Criminal Court. Thus the inclusion of this provision was a signal that the IST procedures were not being dictated word for word by Americans.

Second, in this time of insurgency, the tribunal’s judges have risked their lives by accepting their commission, thus demonstrating the sort of courage needed to make fair decisions. Most impressive among those I met was Raed Jouhi al-Saadi, the 35-year-old judge who presided over Hussein’s initial appearance before the tribunal in June. Because of the extensive media coverage of that event, the judge has become perhaps the most recognized face in Iraq, next to that of Hussein’s. The judge told me that he was given the option of not having his face shown on camera during the proceedings, but that he did not want the tribunal to be subject to the type of criticism that has been leveled at courts in Peru and Chile where judges wore hoods. He was willing to put his personal safety at risk to show the “face of Iraqi justice” and the tribunal’s commitment to fairness. And his example will be followed by the other judges during the actual trials.

True, the judges lack experience in high-profile cases; the individuals who served as senior judges in the old regime were excluded from this job because they would have been viewed as corrupted or tainted. But there were plenty of experienced criminal judges at the lower levels of the Iraqi judiciary to choose from. While they have never dealt with war crimes or crimes against humanity, the same was true of the judges who were selected to serve on the international war crimes tribunals in The Hague, Arusha, Tanzania; and Freetown, Sierra Leone. Even distinguished international jurists had to undergo training to learn about this highly specialized field of law before they were ready to preside. In London, we did sessions about the laws regarding genocide, crimes against humanity, the crime of aggression, plea bargaining, self-representation and command responsibility.

The appearance of fairness is also important, and on that, the tribunal starts with several counts against it. It lacks the imprimatur of the international community. U.N. Secretary General Kofi Annan, citing concerns about the fairness of the IST procedures and his opposition to the death penalty, forbade the judges of the Yugoslav tribunal from participating on a panel scheduled for the final day of the training conference in London.

The evidence suggests, however, that Annan’s actions reflect his desire to make a statement opposing the U.S. invasion of Iraq rather than actual concern about due process. The IST’s rules of procedure, which detail the due process rights of the defendants — including a ban on the use of testimony derived from torture — were still being developed at the time. As for the death penalty, this was not something that the United States had insisted on, but rather something that all of the tribunal judges agreed was a necessary option, at least for defendants who might be convicted of genocide. Many of the Yugoslav tribunal judges, who had agreed to participate in the training conference before Annan intervened, were themselves opponents of capital punishment, but they decided, as I did, that it was better to help the Iraqi tribunal be as effective and fair as possible than sit on the sidelines hurling criticisms.

As for the third ingredient, the quality of the defense, it is too early to say. On a radio show I took part in recently, a defense lawyer for former Deputy Prime Minister Tariq Aziz complained about being unable to see his client. But he conceded that he had last tried a year and a half ago — six months before the Iraqi Special Tribunal statute was even promulgated and a procedure set up for the registration of defense counsel. So, it’s up to the defense lawyers to register with the tribunal rather than simply challenge its legitimacy. If they don’t, the IST plans to appoint defense counsel from the ranks of distinguished Iraqi lawyers.

It has taken more than a year to get to this point, too long in the eyes of some. Yet the actual trials could not begin until after the elections in January 2005, so as not to give the defendants an argument that the tribunal was created in violation of the Geneva Conventions, which prohibit an occupying power from establishing special tribunals. In addition, the rules of procedure needed to be completed, evidence remains to be collected and processed and defense counsel needs to be given a full opportunity to prepare its cases. So far, the pace of setting up the Iraqi tribunal is no slower than that of other war crimes tribunals or of U.S. prosecutions of mob bosses, drug kingpins or terrorists.

While there is a mountain of evidence of atrocities committed by Hussein’s regime, the Iraqi judges acknowledged in London that convicting Hussein of some crimes could be difficult. The defense might argue that the prosecution can’t prove that Hussein had the intent to commit certain crimes or a clear, direct connection with those crimes. Even with regard to the massacres of Kurds or the Shiite famine that resulted from the draining of the southern marshes, Hussein’s defense lawyers might argue that his intent was to suppress an insurrection or flush out insurgents, not to destroy a people. If the evidence bears this out, Hussein might still be convicted of a war crime, but not the more severe charge of genocide. Without much documentary evidence of Hussein’s intentions, his subordinates’ testimony will be critical.

If charged with the crime of aggression, Hussein might argue the “tu quoque,” or “you too,” defense, as Germany’s Grand Admiral Karl Doenitz did at Nuremberg. Doenitz was accused of waging unrestricted submarine warfare in the Atlantic. His lawyer procured an affidavit from U.S. Admiral Chester Nimitz, who said he had done the exact same thing in the Pacific. In light of this, the Nuremberg tribunal acquitted Doenitz on the ground that the international law outlawing unrestricted submarine warfare was not well enough settled to convict. To make the same point, Hussein may try to cite the international debate over the legality of the U.S. invasion and the continuing inability of the international community to agree on a definition of aggression for use by the permanent International Criminal Court.

In the end, as with the Nuremberg trial 60 years ago, if overwhelming evidence is presented against Saddam Hussein and his lieutenants, it will go a long way to making moot any claims that they did not receive fair trials. The tribunal judges are keenly aware of this and understand that, despite Prime Minister Allawi’s desires to speed up the process, there can be no rush to judgment.